CHAPTER IX.

THE SECOND TRIAL.

BEFORE I had been in the Old Bailey dock two minutes on the
morning of my second trial, I found that our case was hopeless. The
names of no less than four jurymen were handed to me by friends in
court, every one of whom had been heard to declare that he meant to
bring in a verdict of Guilty. One of these impartial guardians of
English liberty had stated, in a public-house, his intention to
"make it hot for the Freethinkers." How many more had uttered
similar sentiments it is impossible to say, but it is reasonable to
suppose that, if four were discovered by my friends, there were
others who had escaped their detection. One of the four, a Mr.
Thomas Jackson, was called on the jury list. I at once challenged
him. He was then put into the witness-box, and on examination he
admitted that he "had expressed an opinion adverse to the
defendants in this case."

Then ensued a bit of comedy between Judge North and Sir Hardinge
Giffard, who both assumed a wonderful air of impartiality.

"Judge North: Sir Hardinge, is it not better to
withdraw this juryman at once? Whatever the verdict of the jury, I
should be sorry to have a man among them who had expressed himself
as prejudiced.

Sir Hardinge Giffard: Oh yes, my lord; I withdraw him. It will
be much more satisfactory to the Crown and everybody else
concerned."

"I withdraw him," says Sir Hardinge; "I should be sorry to have
him," says the Judge; both evidently feeling that they were making
a generous concession in the interests of justice. But as a matter
of fact they had no choice. Mr. Thomas Jackson could no more sit on
that jury after my challenge than he could fly over the moon. I
smiled at the pretended generosity of these legal cronies, and said
to myself, "Thank you for nothing."

Mr. Thomas Jackson's exit made no practical difference. I felt,
I will not say that the jury was packed, but that it was admirably
adapted to the end in view. Ours being the only case for trial that
day, it was not difficult to accomplish this result. A friend of
mine said to one of the officers of the court before I entered the
dock, "Well, how is the case going to-day?" "Oh," was the prompt
reply, "they are sure to convict." He knew the character of the
jury.

Some of the "twelve men and true" had not even the decency to
attend to the proceedings. One was timed by a friend in court --
dead asleep for sixty minutes. When that juryman awoke his mind was
made up on the case. At the conclusion of a trial that lasted over
six hours they did not even retire for consultation. They stood up,
faced each other, muttered together for about a minute, nodded
their heads affirmatively, and then sat down and gave a verdict of
guilty.

Several of the jury, however, I am bound to admit, had no idea
that Judge North would inflict upon us such infamous sentences, and
they were quite shocked at the consequences of their verdict. Four
of them subsequently signed the memorial for our release. A fifth
juryman vehemently declined to do so. "No," he said, "not I. I'm a
man of principle! They got off too easy. Two years' hard labor
wouldn't have been a bit too much." This pious gentleman is a
publican in Soho, and bears the name of a famous murderer,
Wainwright.

But to return. Mr. Ramsey and I were represented this time on
all legal points by counsel. Mr. Cluer watched our interests
vigilantly, and performed a difficult task with great courage and
judgment. He bore Judge North's insults with wonderful patience.
"Don't mind what you think about, it, Mr. Cluer," "I don't want you
to tell me what you think;" such were the flowers of courtesy
strewed from the bench upon Mr. Cluer's path. Our counsel's
colleague in the case was Mr. Horace Avory, who represented Mr.
Kemp. He also had a somewhat onerous duty to perform.

There is no need to deal with the technical evidence against us.
It was of the usual character, and we merely cross-examined the
witnesses as a matter of form. One thing was brought out clearly.
Sir Henry Tyler's solicitors were aiding Sir Thomas Nelson, and
their clerks were produced as witnesses against us.

Judge North's reception of evidence was peculiar. Knowing that
there was no Court of Criminal Appeal, he set the rules of
procedure at defiance. Any tittle-tattle was admitted, and postmen
and servants were allowed to swear as to the directions on
unproduced documents alleged to have been addressed to me. When,
several weeks later, I was tried a third time in the Court of
Queen's Bench, I heard Lord Coleridge rebuke the prosecuting
counsel for attempting to put questions against which Judge North
would hear no objection. I understand now how much prisoners are at
the mercy of judges, and I feel how much truth there was in the
remark I once heard from a prisoner in Holloway Gaol, that "it's
often a toss up whether you get one year or seven."

Let me here also ask why Mr. Fawcett, the late Postmaster
General, allowed his letter-carriers to be employed as detectives
in such a case. It was proved in evidence that a policeman had
called at the West-Central Post Office, and obtained an interview
with the manager, after which the letter-carriers were instructed
to spy upon my correspondence. Mr. Fawcett subsequently denied that
the letter-carriers had ever been so instructed; but in that case
the Post Office witnesses must have committed perjury. I do not
believe it. I am confident that they merely obeyed orders, and that
the scandalous abuse of a public trust must be charged upon the
district postmaster, who probably thinks any weapon is legitimate
against Freethinkers. As Mr. Fawcett refused to censure the
postmaster for exceeding his duty, or the letter-carrier for
committing perjury, I cannot hold him altogether guiltless in the
matter.

In opening my defence I took care to accentuate my appreciation
of Judge North's kindness, as the following passage will show:

"Gentlemen of the Jury, -- I stand in a position of
great difficulty and disadvantage. On Thursday last I defended
myself against the very same charges in the very same indictment.
The case lasted nearly seven hours, and the jury retired for more
than two hours without being able to come to an agreement. They
were then discharged, and the learned judge said he would try the
case again on Monday with a new jury. As I had been out on bail
from my committal, and as I stood in the same position after that
abortive trial as before it commenced, I asked the learned judge to
renew my bail, but he refused. I pleaded that I should have no
opportunity to prepare my defence, and I was peremptorily told I
should have the same opportunity as I had had that day. Well,
gentlemen, I have enjoyed the learned judge's opportunity. I have
spent all the weary hours since Thursday, with the exception of the
three allowed for bodily exercise during the whole interval, in a
small prison cell six feet wide, and so dark that I could neither
write nor read at midday without the aid of gaslight. There was
around me no sign of the animated life I am accustomed to, nothing
but the loathsome sights and sounds of prison life. And in these
trying and depressing circumstances I have had to prepare to defend
myself in a new trial against two junior counsel and a senior
counsel, who have had no difficulties to contend with, who have
behind them the wealth and authority of the greatest and richest
Corporation in the world, and who might even walk out of court in
the perfect assurance that the prosecution would not be allowed to
suffer in their absence."

Those who wish to read the whole of my defence, which lasted
over two hours, will find it in the "Three Trials for Blasphemy."
One portion of it, at least, is likely to be of permanent interest.
With Mr. Wheeler's aid I drew up a long list of the abusive
epithets applied by Christian controversialists to their Pagan
opponents or to each other. It fills more than two pages of small
type, and pretty nearly exhausts the vocabulary of vituperation. I
added a few pearls of orthodox abuse of Atheism, and then asked the
jury whether Christians had taught Freethinkers to show respect for
their opponents' feelings. "Nobody in this country," I continued,
"whatever his religion, is called upon to respect the feelings of
anybody else. It is only the Freethinker who is told to respect the
feelings of people from whom he differs. And to respect them how?
Not when he enters their places of worship, not when he stands side
by side with them in the business and pleasures of life, but when
he reads what is written for Freethinkers without knowing that a
pair of Christian eyes will ever scan the page."

It may be asked why I adopted a course so little likely to
conciliate my judges. My reply is that I did not try to conciliate
them. Feeling convinced that their verdict was already settled, and
that my fate was sealed, I cast all such considerations aside, and
deliberately made a speech for my own party. I was resolved that my
loss should be the gain of Freethought. The peroration is the only
other part of my defence I shall venture to quote. It ran as
follows:

"Gentlemen, carry your minds back across the chasm of
eighteen centuries and a half. You are in Jerusalem. A young Jew is
haled along the street to the place of judgment. He stands before
his judge; he is accused -- of what, gentlemen? You know what he is
accused of -- the word must be springing to your lips -- Blasphemy!
Every Christian among you knows that your founder, Jesus Christ,
was crucified after being charged with blasphemy. Gentlemen, it
seems to me that no Christian should ever find a man guilty of
blasphemy after that, but that the very word ought to be wiped from
your vocabulary, as a reproach and a scandal. Christians, your
founder was murdered as a blasphemer, for, although done
judicially, it was still a murder. Surely then you will not, when
you have secured the possession of power, imitate the bad example
of those who killed your founder, violate men's liberties, rob them
of all that is perhaps dearest to them, and brand them with a
stigma of public infamy by a verdict from the jury-box! Surely
gentlemen, it is impossible that you can do that! Who are we? Three
poor men. Are we wicked? No, there is no proof of the charge. Our
honor and honesty are unimpeached. It is not for us to play the
Pharisee and say that we are better than other men. We only say
that we are no worse. What have we done to be classed with thieves
and felons, dragged from our homes and submitted to the indignities
of a life so loathsome and hideous, that it is even revolting to
the spirits of the men who have to exercise authority within the
precincts of the gaol? You know we have done nothing to merit such
a punishment. Gentlemen, you ought to return a verdict of Not
Guilty against us, because the prosecution have not given you
sufficient evidence as to the fact; because whatever legal bigotry
is gained from the decisions of judges in the past must be treated
as obsolete, as the London magistrate treated the law of
Maintenance; because we have done nothing, as the indictment
states, against the peace; because our proceedings have led to no
tumult in the streets, no interference with the liberty of any man,
his person or property; because no evidence has been tendered to
you of any malice in our case; because there is no wicked motive in
anything we have done; because the founder of your own creed was
murdered on a very similar charge to that of which we stand accused
now; and, lastly, because you should in this third quarter of the
nineteenth century assert once and for ever the great principle of
the absolute freedom of each man, unless he trench on the equal
freedom of others. I ask you to assert the great principle of the
liberty of the press, liberty of the platform, liberty of thought
and liberty of speech; I ask you to prevent such prosecutions as
are hinted at in the Times this morning; I ask you not to
allow sects once more to be hurling anathemas against each other,
and flying to the magistrates to settle questions which should be
settled by intellectual and moral suasion; I ask you not to open a
discreditable chapter of English history that ought to have been
closed for ever; I ask you to give us a verdict of Not Guilty, to
send us back to our homes and to stamp your brand of disapprobation
on this prosecution, which is degrading religion by associating it
with all that is penal, obstructive, and loathsome; I ask you to
let us go away from here free men, and so make it impossible that
there ever should again be a prosecution for blasphemy; I ask you
to have your names inscribed in history as the last jury that
decided for ever that great and grand principle of liberty which is
broader than all the skies; a principle so high that no temple
could be lofty enough for its worship; that grand principle which
should rule over all -- the principle of the equal right and the
equal liberty of all men. That is the principle I ask you to assert
by your verdict of Not Guilty. Gentlemen, I ask you to close this
discreditable chapter of persecution once and for ever, and
associate your names on the page of history with liberty, progress,
and everything that is dignified, noble and dear to the consciences
and hearts of men."

When I sat down there was a burst of applause, which the court
officials were unable to suppress. Mr. Ramsey followed with another
written speech, well composed and very much to the point. I noticed
some of his auditors outside the jury-box choking down their
emotion as he touchingly referred to his sleepless nights in
Newgate through thinking of wife and child. His Lordship, I
observed only smiled bitterly.

Judge North's summing up was a fraudulent performance. He told
the jury that the consent of the Attorney-General had to be
obtained for our prosecution, as well as that of the Public
Prosecutor, which was a downright falsehood, unless it was a piece
of sheer ignorance. He pretended to read the whole chapter on
Offences against Religion in Sir James Stephen's "Digest of the
Criminal Law," while in reality he deliberately omitted the very
paragraph which damned his contention and supported mine. He also
produced a new statement of the Law of Blasphemy to suit the
occasion. On the previous Thursday he told the jury that any denial
of the existence of Deity or of Providence was blasphemy. But in
the meantime the public press had condemned this interpretation of
the law as dangerous to high-class heretics. His lordship,
therefore, expounded the law afresh, so as to exempt them while
including us. The only question he now submitted to the jury was,
"Are any of those passages put before you calculated to expose to
ridicule, contempt or derision the Holy Scriptures or the Christian
religion?" This amended statement of the Law of Blasphemy went
directly in the teeth of our Indictment, which charged us with
bringing Holy Scripture and the Christian Religion into
disbelief as well as contempt. The fact is, blasphemy is a
judge-made crime, and the "blasphemer's" fate depends very largely
on who tries him. Lord Coleridge holds one view of the law, Sir
James Stephen another, and Justice North another still. Nay, the
last judge differs even from himself. He can give two various
definitions of the law in five days, no doubt on the principle that
circumstances alter cases, and that what is true for one purpose
may be false for another.

I have said that the jury, with indecent haste, returned a
verdict of Guilty. The crowd of people in court were evidently
surprised at the result, although I was not, and they gave vent to
groans and hisses. The tumult was indescribable. Suddenly there
rang out from the gallery overhead the agonising cry of my young
wife, whom I had implored not to come, and whose presence there I
never suspected. She had crept in and listened all day to my trial,
never leaving her seat for fear of losing it; and now, overwearied
and faint for want of food, she reeled under the heavy blow. My
heart leaped at the sound; my brain reeled; the scene around me
swam in confusion -- judge, jury, lawyers and spectators all
shifting like the pieces in a kaleidoscope; my very frame seemed
expanding and dissolving in space. The feeling lasted only a
moment. Yet to me how long! With a tremendous effort I crushed down
my emotions, and the next moment I was mentally as calm as an Alp,
although physically I quivered like a race-horse sharply reined up
in mid-gallop by an iron hand. My wife I could not help, but I
could still maintain the honor and dignity of Freethought.

Order was at length restored after his lordship had threatened
to clear the court. Mr. Avory then asked him to deal leniently with
Mr. Kemp, who was merely a paid servant of ours, and in no other
way actually responsible for the incriminated publication. Justice
North listened with ill-concealed impatience. He was obviously
anxious to flesh the sword of justice in his helpless victims.
Directly Mr. Avory finished he began to pronounce the following
sentence on me, and while he spoke there was deadly silence in that
crowded court: --

"George William Foote, you have been found Guilty by
the jury of publishing these blasphemous libels. This trial has
been to me a very painful one. I regret extremely to find a person
of your undoubted intelligence, a man gifted by God with such great
ability, should have chosen to prostitute his talents to the
service of the Devil. I consider this paper totally different from
any of the works you have brought before me in every way, and the
sentence I now pass upon you is one of imprisonment for twelve
calendar months."

Twelve months! It was longer than I expected, but what matter?
My indifference, however, was not shared by the crowd. They rose,
and as the reporter said, "burst forth into a storm of hissing,
groaning, and derisive cries." "Damn Christianity!" I heard one
shout, and "Scroggs" and "Jeffries" were flung at the judge, who
seemed at first to enjoy the scene, although he grew alarmed as the
tumult increased. "Clear the gallery," he cried, and the police
burst in among the people. But before they did their work something
happened. From the first I resolved, if I were found guilty and
sentenced to imprisonment, that I would say something before
leaving the dock. My first impulse was to hurl at the judge a few
words of passionate indignation. But I reflected "No! I have been
tried and condemned for ridiculing superstition. Sarcasm is
Blasphemy. Well then, let me sustain my character to the end. I
will leave with a stinging Freethinker sentence on my lips."
Raising my hand, I obtained a moment's silence. Then I folded my
arms and surveyed the judge. Our eyes flashed mutual enmity for a
few seconds, until with a scornful smile and a mock bow I said,
"Thank you, my lord; the sentence is worthy of your creed."

That retort has frequently been cited. It was a happy
inspiration, and the more I ponder it the more profoundly I feel
that it was exactly the right thing to say.

The officers behind gave me a pressing invitation to descend the
dock stairs, and I complied. For a long time I waited in one of the
little dens I have already described, pacing up and down, revolving
many thoughts, and wondering what detained my companions. The fact
is, the police had a great deal of trouble in executing the judge's
orders, and some time elapsed before he could strike Mr. Ramsey and
Mr. Kemp. Meanwhile I could hear through the earth and the brick
walls the roar of that indignant crowd which filled the street and
suspended traffic, and I knew it was the first sound of public
opinion reversing my unjust sentence.

Consider it for a moment. There is no allusion to outraged
feelings, much less any suggestion of "indecency." It is a plain
declaration of theological hatred; it breathes the spirit which
animated the Grand Inquisitors when they sentenced heretics to be
burnt to ashes at the stake. "Listen," says the judge. "I am on
God's side. You are on the Devil's. God doesn't see you, but I do;
God doesn't punish you, but I will. We have hells on earth for you
Freethinkers, in the shape of Christian gaols, and to hell you go!"

Presently Mr. Ramsey came down with nine months on his back, and
then Mr. Kemp with three. They had my sentence between them. Mr.
Cattell afterwards joined us without any sentence. He was ordered
to enter into his own recognisances in £200, and to find one
surety in £100, to come up for judgment when called upon.

People have wondered on what principle Judge North determined
our sentences. One theory is that he punished us according to the
amount of his time we occupied. I made a long speech and got twelve
months; Mr. Ramsey made a short speech and got nine; Mr. Kemp made
no speech and got only three; while Mr. Cattell cried
Peccavi and got off with a caution.

"Ready," cried the old janitor, in response to a distant voice.
Our den was unlocked and we were marched back to Newgate for the
last time.